Changing concept of sovereignty over natural resources

Sovereignty in its widest sense means the supreme, absolute and uncontrollable power by which
any independent State is governed. Through the years, the concept of sovereignty has evolved to
include not only territorial sovereignty but permanent sovereignty over natural resources (PSNR) as
well. Fundamentally, PSNR means the State can freely dispose of its natural wealth and resources
within its territory. Correlatively, the principle brings about the State duty to properly manage its
wealth and resources as well as due care of the environment.
Efforts at formulation of the principle culminated in the adoption of a UN resolution called Declaration
on Permanent Sovereignty over Natural Resources in 1962. The principle progressively developed
that by 1972, the well-known Principle 21 of the Stockholm Declaration on the Human Environment
declares the sovereign right of States to exploit their own natural resources pursuant to their own
environmental policies. However, the right is qualified by the obligation not to cause any extraterritorial environmental harm.
For many years, the main purpose of international agreements related to the principle of permanent
sovereignty over natural resources was the maximum use and development of natural resources
instead of rational management and conservation of natural resources in order to prevent their
depletion or degradation. Perhaps, the reason was the concept of sovereignty is difficult, if not
impossible, to fathom in an ecological frame of reference. The very thought of ecology is based on
the notion of interdependence rather than independence. In fact, rights of full disposal were granted
to States on the basis of territorial sovereignty rather than a principle of sharing the worlds
resources. The trend was overtaken after the 1972 UN Stockholm Conference on the Human
Environment by resource-oriented multilateral environmental agreements (MEAs) or treaties. An
example is the UN Law of the Sea Convention (1982) which adopted the regime of common
heritage of mankind by which non-State areas are not freely appropriated anymore by financially
capable developed countries for their exclusive use. Similarly, incorporation of the integrated
ecosystem approach in the Convention on Biological Diversity (1992) enumerates State duties to
properly manage its species of plants and animals which, in effect, limits a States exercise of
jurisdiction over its natural resources. From unrestrained freedom of action, State sovereignty was
interpreted in a more functional way to mean specific uses of a resource rather than absolute and
unlimited jurisdiction within a given geographical space.
Functional sovereignty is bolstered by reference of various PSNR-related UN resolutions and
treaties to mankind referring to areas and resources beyond the limits of national jurisdiction or the
global commons. In this connection, mention should be made that at the 1992 UN Conference on
Environment and Development in Rio de Janeiro, proposals were made to characterize biological
and genetic resources as well as the worlds forests as the common heritage of humankind. Thus,
the three Rio treaties recognize that change in the Earths climate and its adverse effects are a
common concern of humankind (Climate Change Convention); that the conservation of biological
diversity is a concern of humankind (Convention on Biological Diversity); and desertification and

drought are problems of global dimension and human beings in affected areas should be at the
centre of concerns to combat desertification and to mitigate the effects of drought (Convention to
Combat Desertification). Note that in those treaties people, humankind and the environment as such
are objects rather than subjects of international law. As objects, indirectly they have rights under or
are beneficiaries of international law through subjects of international law, referring to the State
actors in the international legal system.
Sovereignty has served as the foundation of public international law since the Peace of Westphalia
(1648) with sovereign states as the principal actors in international relations. But as can be gleaned,
times have changed. What does the principle represent in the changing world? Current thinking
maintains permanent sovereignty over natural resources as a State-oriented law under which natural
resources regimes co-exist but barely interact. Be that as it may, the trend, as can be observed, is
towards a legal interpretation that is humankind-oriented, under which sustainable development and
environmental preservation are approached from a global perspective. At its core is cooperation
aimed at implementation of the right to development, the wise management of natural resources,
equitable sharing of transboundary natural resources and the global commons for preservation for
the coming generations. With this legal thinking and the concomitant framework, sovereignty over
natural resources as the fountainhead of rights and obligations can very well continue to serve as a
basic principle of public international law. The above-enumerated treaties incorporate the law of
interdependence in the sustainable use of natural resources emphasizing States are under the duty
to cooperate with each other to promote development sustainability of the common environment.
With this latest development in the increasing appreciation of PSNR, is it not time to re-think and reactualize sovereignty in order to formally recognize its functional role as demanded by changing
times?
After all, the general principle that ensues from all this is that the Earths biosphere is the common
heritage of all life on earth of which humanity is the steward

Common sovereignty over transboundary natural resource

Transboundary natural resources transcend national jurisdictions, which means that the exercise of
jurisdiction of one state affects the environment of one or more other states or areas
Owing to the original and traditional interpretation of sovereign rights of sates over their natural
wealth, resources become depleted or exhausted as each state seeks to maximize its own benefit
by exploiting the resources. Also, existing international law on transboundary natural resources
tends to be piecemeal and uneven when dealing with the issue of transboundary waters, e.g. ECE
Transboundary Watercourses Convention (1992), Danube Convention (1992); and living resources,
e.g. Whaling Convention (1946), Antartic Marine Living Resources Convention (1980).
The international challenge for coordination and cooperation to ensure the equitable and sustainable
or reasonable utilization and management of transboundary natural resources was brought forth by
two international legal studies done by the World Commission on Environment and Development
(1986) and the International Council of Environmental Law (2004) which expound on the principle

that States are entitled to a reasonable and equitable share in the beneficial uses of a transboundary
natural resource. According to this principle, no use or category of uses is inherently superior to any
other use or category of uses. Whether a certain use is reasonable or not has to be determined in
the light of all relevant factors in each particular case. These factors may include, inter alia,
geographic, hydrologic, climatic, biologic or ecological conditions, the existing use made of the
natural resource, the economic and social needs of the States concerned, the feasibility of
alternative means including the availability of other resourcesto satisfy these needs and the
possibility of compensation to one or more of the States concerned as a means of adjusting conflicts
among uses. The essence of the principle of equitable utilization is that instead of laying down a
norm with a more or less specific content, it rather prescribes a certain technique aimed at reaching
an equitable result in each concrete case.
The principle has been applied in many multilateral environmental agreements or treaties specifically
those concerning the use of the waters of international watercourses. Examples are the Indus
Waters Treaty between India and Pakistan (1960) and the Agreement Regulating the Withdrawal of
Water from Lake Constance between Austria, Federal Republic of Germany and Switzerland (1996)
which determined the delimitation of the rights and duties of each State over the transboundary
waters.
An example in Southeast Asia is the Agreement on the Cooperation for the Sustainable
Development of the Mekong River Basin (1995) drawn in accordance with the principle of
safeguarding sovereignty, territorial integrity and mutual benefit.
Aside from treaties, the equitable utilization principle was also a recommendation in the 1972 UN
Stockholm Conference on the Human Environment which says The net benefits of hydrologic
regions common to more than one national jurisdiction are to be shared equitably by the nations
concerned (Recommendation 51). It was also a recommendation of the Action Plan adopted by the
1977 UN Water Conference which declared that In relation to the use, management and
development of shared water resources, national policies should take into consideration the right of
each State . . . to equitably utilize such resources (Recommendation 91). Furthermore, highest
courts or arbitral tribunals in Germany, the United States, Switzerland and India have also frequently
applied the principle of equitable utilization in the sharing of waters of interstate watercourses.
To efficiently manage what is left of the earths natural resources, a relaxed concept of sovereignty
was thought of through equitable sharing of transboundary natural resources and the global
commons. It appears on the basis of State practice that a rule of customary international law has
emerged requiring States to cooperate in the conservation and management of transboundary
natural resources.